Time Limits for Commencement of Proceedings for Property Division

20/08/2015

The Family Court and the Federal Circuit Court are the Courts that hear and determine applications for property division.  These Courts can also approve Orders agreed on by parties.  These are known as Consent Orders.  Time limits apply to applications for property division and maintenance Orders.  The time limits apply to marriages and to de facto relationships (including same sex relationships). 

A party to a marriage or a de facto relationship must commence their application within the time limits.  There are time limits applying to applications for property division.  The Family Law Act 1975 provides for parties to a marriage or a de facto relationship to be able to make an application to the Court for a property division but if the application is not made within the time limits the application can be “Statute Barred”.

Time Limits for Parties to a Marriage

Where parties are married, an application for property settlement / division must be made within 12 months of the date of the Divorce Order or Decree of nullity of a marriage. 

In the event the parties do not make application for a property division within that time then they are precluded from seeking orders from the Court in relation to a property division unless:-

1. They both consent to the Court having the power to make the Orders.
2. The party seeking a property settlement obtains the Courts leave in order to proceed.
3. Leave to proceed with a property application out of time will not be granted unless the Court is satisfied that:-
   1. That hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or
   2. In the case of proceedings in relation to the maintenance of a party to a marriage, that at the end of the period within which the proceedings should have been commenced without leave of the Court, the circumstances of the Applicant were such that the Applicant would have been unable to support himself or herself without an income tested pension or allowance.

Time Limits for De Facto Partner

Time limitations also apply to de facto relationships seeking property division.  The property division application must be made within a period of two years after the end of the de facto relationship.  This period of time is known as the standard application period. 

The Court may grant leave to a party to apply after the end of the standard application period if it is satisfied that:-

1. They both consent to the Court having the power to make the Orders.
2. The party seeking a property settlement obtains the Courts leave in order to proceed.  Leave to proceed with a property application out of time will not be granted unless the Court is satisfied that:-
   1. That hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or
   2. In the case of proceedings in relation to the maintenance of a party to a marriage, that at the end of the period within which the proceedings should have been commenced without leave of the Court the circumstances of the Applicant were such that the Applicant would have been unable to support himself or herself without an income tested pension or allowance.

Please do not hesitate to contact Richard Watson or Dennis Grant who are happy to assist with any concerns or queries you may have as to exactly when you are required to commence proceedings for “property division”.